HARI DEV DIWEDI Vs. GAURI
LAWS(HPH)-2021-3-45
HIGH COURT OF HIMACHAL PRADESH
Decided on March 10,2021

Hari Dev Diwedi Appellant
VERSUS
GAURI Respondents

JUDGEMENT

Jyotsna Rewal Dua,J. - (1.) Defendants moved an application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure for rejection of plaint on account of filing less amount of Court fee by the plaintiff. The application was dismissed by the learned Trial Court on 31.01.2013. This order of learned Trial Court has been questioned by the defendants in the instant petition preferred under Article 227 of the Constitution of India.
(2.) Facts:- 2(i). Civil Suit was filed by the respondent in the year 2011 with the averments that:- (a). Suit land measuring 00-76-52 hectares was owned and possessed by her father late Sh. Satdev, who was also holder of account Nos. i.e. A/c No.492934 in Post Office, Una having an amount of Rs.65,922/- and A/c No.367 in Basoli Agricultural Service Co-operative Society having an amount of Rs.7,64,471/-. (b). Parents of the plaintiff were divorced. Though the custody of the plaintiff remained with her father, however, finding constant watch and care of the little child/plaintiff difficult and owing to his strained relations with other family members, Sh. Satdev had entrusted the wellbeing of the plaintiff with her maternal uncle. (c). Deceased Satdev had sufficient landed property in his name and funds in his accounts. He developed mental sickness and could not apprehend the things properly. During the period of his mental illness, he was looked after by the plaintiff and her maternal uncle. Sh. Satdev passed away on 04.07.2010. (d). After mourning the death of her father, when the plaintiff approached the office of Basoli Agricultural Service Co-operative Society for getting her name incorporated in the account of her father, she became aware of the fact that the amount lying in the account had been transferred to the account of one of the defendants on the basis of a will statedly executed by her late father. Subsequently, a dispute with respect to attestation of mutation also arose between the parties in respect of rights over the landed property of the deceased. (e). Father of the plaintiff had never executed the alleged will during his lifetime in favour of the defendants. The will is forged, fabricated, invalid, null and void. There was no reason for plaintiff's father to disinherit her from his estate as she was his only daughter and in good relations with him. In any case, the land was Joint Hindu Family Coparcenary property of plaintiff and her deceased father, it could not be alienated in any manner save and except for legal necessity. 2(ii). The plaintiff valued the suit for the purposes of Court Fees and Jurisdiction at Rs.130/- and accordingly affixed the Court Fees. In the relief clause, plaintiff sought a declaration that the land measuring 00-76-52 hectares (comprised in 14 different parcels/khasra numbers) is owned and possessed by her and she is also entitled to operate and receive the amount lying in two accounts of her deceased father, being his daughter and natural heir. The plaintiff also sought the relief of declaring the will dated 09.05.2010 qua the estate of deceased Satdev in favour of the defendants as fake, forged, fabricated, void ab-initio, having no adverse effect upon the right, title and interest of the plaintiff over the suit property as the same was Joint Hindu Family Coparcenary property, which could not be alienated except for legal necessity and without the consent of other Co-parcener/plaintiff. Alongwith the above declaratory reliefs, plaintiff also sought consequential relief of permanent injunction for restraining the defendants from getting the revenue entries recorded in their names on the basis of alleged will, for ousting the plaintiff from the joint possession, changing the nature and character of the suit land till its partition and for releasing the amount lying in the accounts of her father in favour of the defendants. In the alternative, decree for joint possession was also prayed for. It will be appropriate to extract the relief clause:- "It is therefore, prayed that a decree for declaration to the effect that the land measuring 00- 76-52 Hects detailed below:- (i) to (xiv) ........................... (xv) .......................is owned and possessed by the plaintiff and she is also entitled to operate and receive the amount of about Rs.65922/- laying in A/C No.492934 in the post office Una, Div. Una (H.P.) as well as an amount of about Rs.7,64,471/- laying in A/C No.367 in Basoli Agricultural Service Co-operative Society, VPO Basoli Tehsil & Distt. Una (H.P.), along with interest being the only daughter as well as natural heir/successor-in-interest of deceased Satdev S/O Jagan Nath and the alleged WILL dated 09-05-2010 qua the estate of deceased Satdev in favour of defts is fake, forged, fabricated, invalid document and which is wrong, illegal, void ab-initio, ineffective, inoperative, having no adverse effect upon the right, title and interest of pelff over suit property, as the same was joint Hindu family co-parcenary property of pelff and her father which cannot be alienated in any manner by the manager of joint Hindu family except for legal necessity and without the consent of other co-parcener i.e. pelff, with consequential relief of permanent injunction restraining the defts from getting mutation/revenue entries in their names on the basis of alleged will, ousting the pelff forcibly from joint possession, changing nature and character in any manner until final partition of suit land or making any kind of alienation of specific khasra nos., getting release the amount laying in aforesaid accounts and in the alternative decree for joint possession and any other relief which this Hon'ble court may deems fit and just in the facts and circumstances of the case may kindly be passed in favour of plaintiff and against the defendants with costs in the interest of justice U/Ss 34 to 38 of Specific Relief Act." 2(iii). Defendants No.1, 3 and 2, 4 filed their separate written statements. In both the written statements, a preliminary objection was taken that the suit had not been valued properly for the purposes of Court Fee and Jurisdiction. The reason assigned for taking this objection was that the plaintiff had sought relief regarding Account No.367, which had an amount of Rs.7,64,471/-, upon which she was required to affix the Court Fee of Rs.10,210/-, whereas she had valued the suit at Rs.130/- and affixed court fee of Rs.23/-. It was asserted that the Court below had no jurisdiction to try and entertain the present suit. 2(iv). A separate application under Order 7 Rule 11 of the Code of Civil Procedure was moved by the defendants seeking rejection of plaint on following grounds:- "2 That the plaintiff has filed the suit for declaration vide which she is claiming herself to be owner in possession of the suit land. The further relief claimed by the plaintiff is that she is entitled to receive an amount of Rs.65922/- as well as Rs.7,64,471/-. 3 That the plaintiff-applicant wrongly valued the suit to the tune of Rs.130/- and has affixed the court fee of Rs.23/- whereas as per the pleadings particularly keeping in view the relief claimed by the plaintiff she is require to affix the court fee on the value of Rs.7,64,471/- which comes to Rs.10210/-." The application was dismissed by the learned Trial Court vide order dated 31.01.2013. Aggrieved, the defendants/petitioners have moved this Court by way of the present petition.
(3.) Heard learned counsel for the parties and gone through the record. The contention raised on behalf of the petitioners/defendants is that the suit filed by the plaintiff was governed by Section 7(iv)(c) of the Himachal Pradesh Court Fees Act, 1968 and ad valorem Court Fees on the amount claimed was liable to be paid for the purpose of Court Fee and Jurisdiction. It is further contended that the learned Court below had no jurisdiction to try the suit on account of lack of pecuniary jurisdiction to deal with the matter. In support of his contention, learned Senior Counsel has relied upon the judgments titled Devta Satya Narain and another Versus Lal Chand and others , 2006 3 ShimLC 92, and CMPMO No.2012 & CMP No.1396 of 2012, titled Khawaja Khallilullah Versus Mrs. Shamem Butt and others, decided on 01.04.2013. Whereas on behalf of the respondent/plaintiff, it is argued that affixation of Court Fee, in view of the reliefs prayed for by the plaintiff, will be governed by Section 7(iv)(c) first proviso of the Himachal Pradesh Court Fees Act, 1968 and accordingly Court Fee of Rs.23/- has been affixed. The suit is only for seeking a decree of declaration alongwith consequential relief of permanent injunction. ;


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